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The Uses of Ambiguity
Editors’ Note: The reality sinks in: everybody’s now trying to reach an agreement, but on some fundamental things, the parties really don’t agree. Some of those involved see themselves as reasonable people, others are Standing On Principle without any thought of what that will mean in practice. Is there anything you can do to get this dispute over with before it spirals completely out of control? Yes, says Honeyman: you can allow, or even consciously design in, a bit of ambiguity here and there. Doing this knowledgeably can preserve your principles, while allowing for an agreement that works well enough for an imperfect world. This can be read with Moffitt’s chapter on Contingent Agreements and Wade’s on the Final Gap.
Go to work under any of thousands of labor-management contracts, and you can be fired only for “just cause”—whatever that means. A truly vague statement, it’s pretty well guaranteed to generate disputes under the contract later, as the parties naturally see a marginal employee differently. So it’s a classic example of ambiguity in action. But why on earth would any sane pair of labor and management negotiation teams leave the all-important discharge clause so up-in-the-air?
There is, I think, a very good reason. It starts with the notion that a matter of principle really is often at the root of a dispute—even though experienced negotiators are familiar with the counterpart who takes a strong and seemingly unalterable stand on a point of principle, only to exchange it for money when the price is right. An explicit confrontation over a question of principle can result in a total inability to work out a settlement; so it should not be surprising that negotiators and mediators sometimes paper over these cracks with calculated or innocent ambiguities. This chapter will examine the function of ambiguity in agreements, and defend its deliberate use under certain circumstances. I will argue in particular that under certain (quite common) circumstances, ambiguity can be employed with a reasonable confidence that its use will moderate some otherwise unacceptable risks.
There will always be those who value the effect of ambiguities on their earnings, such as a full-time labor arbitrator of my acquaintance who once declared happily that “There’s no such thing as clear contract language.” But most negotiators and mediators seem to have a vague disapproval of ambiguity. This is excusable. Most professional negotiators, most of the time, seek agreements that will be clear, easy to administer, and durable. [NDR: Wade & Honeyman, Lasting Agreement] A general preference for wrapping up loose ends fits with the notion of “settlement,” and a neat and tidy job seems consistent with professionalism.
The principals in many negotiations may bring to bear a different perspective. Even while negotiating an agreement, they are looking down the road to the later interpretation of that agreement; and in the case of permanent relationships like those between labor and management or one nation and another, they are quite likely to be engaged in the arbitration of one dispute, the litigation of another, and the negotiation of a third at the same time.
Much of what happens in complex negotiations can be seen in terms of a struggle between radical and moderate elements within each party (Bellman 2006; Matz 2006). In a multi-faceted negotiation, the fact that the moderate element on one issue may be the radical element on another obscures, but does not change, the essential relationship between moderate and radical. Bear with me if for simplicity I encapsulate a typical negotiating group as consisting of a radical minority and a moderate majority. (Where the situation is reversed, effective negotiation or mediation is unlikely).
In such a group, the radicals can be expected to emphasize philosophical and ideological purposes, partly out of conviction, but also because this gives them a platform in the continuing attempt to garner public support, and perhaps become the dominant faction. The moderates, meanwhile, are likely to emphasize the practical results of accommodation as opposed to confrontation. I have elsewhere commented [NDR: Honeyman, Working with Mediators] that when a mediator is presented with such a situation, the mediator’s tendency, or even function, is to help the moderate out-argue the radical within a given party. Mediators, however, are not alone in seeing it as generally preferable to divert an argument over “principle” into a “pragmatic” channel, so that an explicit agreement can be reached. Yet this cannot always be accomplished. The best alternative may sometimes be to leave a deliberate gap or other ambiguity in the agreement: clarity emphasizes the differences,....
For full contents please purchase The Negotiator’s Desk Reference.
Bellman, H. 2006. Internal Conflicts of the Team. In The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, edited by A. K. Schneider and C. Honeyman. Washington, DC: American Bar Association.
Elkouri, F. and E. A. Elkouri. 2012. How Arbitration Works, 7th edn. edited by Kenneth May. Washington, DC: BNA/American Bar Association.
Empson, W. 1949. Seven Types of Ambiguity. London: Chatto & Windus.
Matz, D. 2006. Intra-team Miscommunication. In The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator, edited by A. K. Schneider and C. Honeyman. Washington, DC: American Bar Association.